Imprisonment

The Commission generally instructs its duty solicitors that they should not conduct guilty pleas where there is a real likelihood that the sentence imposed will be one of imprisonment, whether immediate or suspended [see Guilty Pleas chapter]. Imprisonment is discussed below for the sake of completeness.

Section 11 of the Criminal Law (Sentencing) Act 1988 (SA) places imprisonment as the penalty of last resort. This section prohibits a penalty of imprisonment unless the defendant:

has shown a tendency to be violent towards other people [see s 11(1)(a)(i)], or

is likely to commit a serious offence if not imprisoned [see s 11(1)(a)(ii)], or

has previously received a conviction for an offence punishable by imprisonment [see s 11(1)(a)(iii)].

In addition, a sentence of imprisonment may be imposed based upon:

the gravity or circumstances of the offence, whereby no other penalty would be appropriate [see s 11(1)(a)(iv)], or where

the use of imprisonment is considered necessary to give proper effect to the policies of the criminal law as outlined in section 10 of the Act [see ss 11(b) and 10].

Imprisonment is a strong possibility in the following cases:

any offence where imprisonment is a penalty if the defendant has a number of priors for the same type of offending

larceny/shoplifting if the defendant has several prior convictions

larceny as a servant, because the breach of the employer’s trust is considered to be extremely aggravating

damage property if the damage is extensive, such as graffiti which will cost thousands of dollars to remove

assault, particularly assault police, and especially if aggravated or the defendant has a prior conviction or convictions for assault

driving whilst under disqualification

illegal use of a motor vehicle: If it is a first offence, there is a reasonable prospect of a suspended sentence, and on a second offence a much stronger chance of immediate imprisonment. An aggravating feature would be if a high speed chase by police occurred during the illegal use of the vehicle.

offences which breach suspended sentences or parole

defendants with extensive prior records, particularly if there are prior gaol terms or a significant history of probation

as a very general rule, a first offence of non-aggravated serious criminal trespass often attracts a suspended term of imprisonment, and a second offence an immediate term of imprisonment. However if there are aggravating features or the offending is of a serious nature, a first offence may result in an immediate sentence of imprisonment [see R v Delphin (2001) 79 SASR 429].